Miller’s Notebook, 24.[*]
Court of Common Pleas of Delaware, Sussex County.
November, 1793.
This was an ejectment for one hundred acres of land in the forest of Cedar Creek Hundred.
In the trial of the cause, the plaintiff produced a warrant to William Loftland under whom she claimed, dated April 2, 1760,
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for one hundred acres of land in Cedar Creek Hundred, bounded by lands of Benjamin Riley and John Hudson, and directed to Robert Shankland, Esq., deputy surveyor of Sussex County. This was considered by the plaintiff’s counsel as a located warrant, inasmuch as it identified particularly the lands for which it was granted. For this reason, they contended that a survey or return of this warrant was unnecessary, it containing a location on the face of it. Having then proved that such lands, answerable to the above description, were in the possession of the defendant and having deduced a regular title to the lessor of the plaintiff, they rested.
The defendant then proved that a certain Thomas Wharton about thirty years ago was in possession of the land, and that it was conveyed from him to the defendant, Richard Bloxsum. After this they offered in evidence what they said was the original warrant granted to William Loftland in 1760, upon which there was an indorsement in nature of a return, which certified that the warrant was executed, by a location thereof upon fourteen acres of land; which, upon examination, were found to be near the lands of William Loftland, but not to answer the description contained in the warrant; also, a separate paper, proved by Rhoads Shankland, the present county surveyor, to be the survey or return of the said warrant, and a copy of which he proved to have been transmitted to the Land Office in Philadelphia.
Peery and Miller, for plaintiff, objected to these papers going in evidence to the jury. They contended that as to the indorsement, it could not be considered as evidence, as it stated a full and complete return of the warrant to have been previously made, to which it had reference. This then is certainly inchoate and imperfect in itself; and this makes it necessary to produce the legal, regular return. As to both papers, it is to be observed that they are not regularly authenticated. If return has been made to the proper office of the surveyor, this warrant, why not produce an office copy? This would be the best evidence and therefore legal. If such were produced, it might essentially vary from the papers now offered. These may be one of many drafts, made by the deputy surveyor, for experiment and calculation, previous to the proper return and materially different from it. It could not be our duty to procure an office copy to compare with it, as we did not know this would be produced. But if anything other than regularly authenticated office copies should be admitted, it should be nothing less than the surveyor’s book. By an Act of Assembly, 1 Del. Laws 251, it is enacted “that the deputy surveyors shall in fair books record the warrants, and
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shall duly prove the draughts and plots and then record them.” So that by this Act, nothing but the books are to be considered as evidence, and any draft or plot can be of no avail under the Act, until it be recorded.
Bayard and Wilson, for defendants, insisted the papers were proper evidence; that the practice in the courts of Delaware and Pennsylvania had been uniformly to admit such evidence, Dall. 7; that the particular situation of this country, and this state’s being so long without a land office, made it necessary to admit anything which could throw light upon an inquiry into a confused mass of title papers. That Rhoads Shankland, the successor of the person who made the survey and who has in his possession all the papers belonging to the office, proves this paper to be genuine and authentic, and that an exact copy was transmitted to Philadelphia to be lodged in the Land Office. That evidence should be admitted indulgently to support such long continued possession. The indorsement appearing also on what may be called an original, as it is a printed warrant sent to the surveyor, entitles it to additional credit.
BASSETT, C. J.
Unless such papers as those which are now offered were admitted as evidence in the trial of ejectments, there could be few recoveries, and great injustice would be the consequence. Warrants are frequently sent a great distance through different hands before they reach the hands of the county surveyor. Returns go through the same dangers sometimes, before they arrive at the Land Office, the place of their destination. Both are not very seldom lost on the way; and we must repair that loss by an indulgent admission of anything which can enlighten the inquiry.
The unanimous opinion of the Court is that the papers be read to the jury.